Doersam v. Isenburg

Crouch, J.: Defendant resided with her husband and three children in Buffalo. Louis, aged twenty-two years, was in business for himself and owned a Ford car. Solomon, aged eighteen years, was not, so far as appears, engaged in any work. The third child was a young girl. On August 8, 1921, while Solomon was driving Louis’ car with his mother and sister on the rear seat, there was a collision with a truck, resulting in the death of plaintiff’s intestate. The complaint herein alleged that the injury was due to Solomon's negligence and that Solomon was the servant of the defendant. At the close of plaintiff’s case a nonsuit was granted upon the ground that defendant was not responsible for the acts of Solomon, “ he not being subject to her control and not being a servant, she not being the owner of the automobile.” The evidence shows that on August 8,1921, Solomon came home about one o’clock. The Ford was standing in front of the house. He did not know what he was going to do when he got home, and hence had had no talk with Louis. His mother said to him: “ Louis left the car downstairs and he says you could take me downtown.” Solomon said: “All right.” Before starting defendant told Solomon that she wished to go to three certain stores. He drove downtown and parked the car near the first store. Defendant got out, bought a dress for herself and returned in an hour. Solomon waited in the car for her. He did nothing downtown and had nothing to do. Defendant said she would like to go for some bread. Solomon then drove her to the family bakery. She went into the bakery, bought the bread, came out, told Solomon she would like to go to the grocery, he drove directly there, she made the purchases, came out and said to Solomon: “ Go straight home.” The accident happened shortly after on the way home. This was the first time Solomon had driven this car. A jury could fairly find that Louis had loaned the" car to defendant; that she requested Solomon to drive her downtown on her own business; that Solomon had no thought of taking the car for his own use; that he had no purpose of his own to serve and engaged in no enterprise of his own; that there was no privity between him [449] and Louis; that the initiation and entire conduct and direction of the trip was in the hands of the defendant for her own purposes. Moreover, Solomon was a minor and generally under the direction and control of his parents. Where a party borrows or hires a car and drives it himself in his own business that party and not the owner is hable for negligent driving and consequent damage. (Van Blaricom v. Dodgson, 220 N. Y. 111; Braverman v. Hart, 105 N. Y. Supp. 107; Neubrand v. Kraft, 169 Iowa, 444.) Where that party, instead of driving the car himself, employs a driver, the same result follows. (Freibaum v. Brady, 143 App. Div. 220; Hornstein v. Southern Boulevard R. Co., 79 Misc. Rep. 34.) Whether the defendant and Solomon at the time of the accident stood in the relation of master and servant was on the evidence a question of fact for the jury. (Baldwin v. Abraham, 57 App. Div. 67.) Likewise whether Solomon, the driver of the Ford car, was guilty of negligence, was, upon the evidence, a question of fact for the jury. It may be a close question, but it is not a clear question. In other words, while the evidence may be unsatisfactory, it is not insufficient in law. (Getty v. Williams Silver Co., 221 N. Y. 34, 39; Queeney v. Willi, 225 id. 374, 378.) The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. All concur. Judgment reversed on the law and new trial granted, with costa to appellant to abide event.